This case has been before the Board previously. The formal
complaint alleges that respondent made knowingly false or
reckless statements about various judges and a county prosecutor
in violation of MRPC 8.2(a) and other rules. Respondent moved for
summary disposition under MCR 2.116(C)(8) and (10). The hearing
panel granted respondent’s motion for summary disposition under
MCR 2.116(C)(10), but did not address the arguments based on MCR
2.116(C)(8). Our previous opinion ("Fieger I")
stated in part:

We conclude that summary disposition under MCR 2.116(C)(10) as to
the question whether respondent made the alleged statements with
actual malice is not appropriate in this case. If respondent=s intent becomes the
dispositive issue in this case, we conclude that a full hearing
is the appropriate and necessary means for the panel to decide
the question.

Accordingly, we vacate the panel’s order granting summary
disposition and remand for further proceedings, which may include
additional proceedings under MCR 2.116(C)(8).

After remand, the panel received further briefing and heard
arguments on respondent’s motion under MCR 2.116(C)(8). The panel
granted the motion and dismissed all three counts of the formal
complaint. We now affirm the dismissal of Count III, reverse the
dismissal of Counts I and II, and remand this matter to the panel
for hearing.

I. Panel Proceedings and Arguments on Review.

The panel made several rulings in dismissing the complaint
pursuant to MCR 2.116(C)(8), including the following:

Some of the statements allegedly made by respondent are not
prohibited by MRPC 8.2(a);

Some of the statements allegedly made by respondent are
constitutionally protected;

Rule 8.2(a) is violative of the First Amendment and the Equal
Protection Clause; and,

The MRPC 8.4 and MCR 9.104 claims should be dismissed because
they fail to state a claim or are overbroad.

Respondent challenges the rules he is alleged to have breached as
overbroad and violative of the First Amendment. Amicus Curiae,
the American Civil Liberties Union of Michigan, argues that the
rules relied on by the Grievance Administrator are overbroad,
vague, and violative of the First Amendment as applied.

II. The Constitutionality of Rule 8.2(a): Our Prior Holding
and the Applicable Law.

In Fieger I, we held:

In this case, each of the three counts in the formal complaint
allege a violation of MRPC 8.2(a), which provides:

A lawyer shall not make a statement that the lawyer knows to be
false or with reckless disregard as to its truth or falsity
concerning the qualifications or integrity of a judge,
adjudicative officer, or public legal officer, or of a candidate
for election or appointment to judicial or legal office.

Under New York Times v Sullivan 376 US 254; 84 S Ct 710;
11 L Ed 2d 686 (1964), a person may not be held civilly or
criminally liable for defamatory statements unless the statements
were made with "actual malice," i.e., unless the person
made "a false statement . . . with knowledge that it was
false or with reckless disregard of whether it was false or
not." Garrison v Louisiana, 379 US 64, 67; 85 S Ct
209, 212; 13 L Ed 2d 125 (1964) (overturning criminal libel
conviction of district attorney for disparaging comments
regarding 8 judges).

According to a leading commentator,8 "Rule 8.2(a)
incorporates the First Amendment standard for criticism of public
officials, as articulated by the Supreme Court in New York
Times v Sullivan and its progeny."9 Although
other rule violations are alleged against respondent, the
Administrator appears to concede that discipline may only be
based on statements regarding the integrity or qualifications of
persons denominated in MRPC 8.2(a) if the scienter requirement of
that rule, which is to say the actual malice standard of New
York Times v Sullivan, is established. This is a proper
concession. The rules of professional conduct are subject to the
First Amendment. Moreover, if a specific rule governs the alleged
conduct, its terms should take precedence over those of a more
general rule.
__________________________________________________

8Geoffrey C. Hazard, Jr., who served
as Reporter for the American Bar Association Special Commission
on Evaluation of Professional Standards (Kutak Commission), which
proposed to the ABA House of Delegates what eventually became the
Model Rules of Professional Conduct.

9Hazard & Hodes, The Law
of Lawyering (2d ed), ‘8.2:201, p
934. Although a literal reading of the second prong of the rule
(proscribing statement made Awith reckless
disregard as to its truth or falsity,@) may suggest
that recklessness is disciplinable regardless of falsity, the
commentators agree that ARule 8.2(a)
is limited to matters of fact that can be proven false, as is the
case with libel and slander.@Id.;
see also Wolfram, Modern Legal Ethics, p 601 n 51, p 602 n
54.___________________________________________________

This passage from our previous opinion resolves several issues
raised by respondent below, raised by the panel opinion now
before us, and raised by respondent and amicus in this review.

1. New York Times, Gentile,
And The Clear And
Present Danger Doctrine.

Respondent argues that "lawyer speech may [only] be
penalized through the disciplinary mechanism . . . [where] . . .
there is a substantial likelihood of materially prejudicing an
adjudicative proceeding, Gentile v State Bar of Nevada,
501 US 1030; 111 S Ct 2720; 115 L Ed 2d 888 (1991), or where
there is a clear and present danger to the administration of
justice. Bridges v California, 314 US 252 (1941)."
(Respondent’s Supplemental Post-Argument Memorandum, p 5.) Amicus
also urges that Gentile is dispositive.

The Supreme Court has never treated First Amendment guarantees as
absolute. Instead, it has employed various formulations, tests,
or doctrines to balance First Amendment rights against other
critically important values. "One of the standards the
Supreme Court first developed to justify abridgement of freedom
of expression for the benefit of society is the ‘clear and
present danger’ test." 4 Rotunda & Nowak, Treatise on
Constitutional Law: Substance & Procedure (2d ed), ‘ 20.12, p 52.

The clear and present danger doctrine had its origin in cases
involving resistance to US involvement in World War I, and it was
for a time applied to cases not involving sedition. 4 Rotunda
& Nowak, supra, ‘
20.13, p 61 n 39. Today, the test may still be applied in
contempt of court cases involving criticism of judges where it is
alleged that the speech will be prejudicial to the administration
of justice. Id., at pp 61-62. "However, outside of
the contempt of court cases, different tests had to be developed
to evaluate the competing interests where the governmental
restraints are placed on different types of speech, such as
obscenity or defamation." Id., at p 62.

In Gentile, supra, Justice Rehnquist, writing for
the Court, acknowledged that the First Amendment has been held
"to require a showing of ‘clear and present danger’ that a
malfunction in the criminal justice system will be caused before
a State may prohibit media speech or publication about a
particular pending trial." 111 S Ct at 2743. However,
Justice Rehnquist’s majority opinion concludes that "the
speech of lawyers representing clients in pending cases may be
regulated under a less demanding standard than that established
for regulation of the press . . . ." 111 S Ct at 2744.

The Gentile decision offers only a little guidance in this
case. Gentile, a Nevada lawyer, held a press conference shortly
after his client was indicted. Six months later, Gentile’s client
was acquitted on all counts following a jury trial. The State Bar
of Nevada then filed a complaint against Gentile alleging a
violation of Nevada’s version of Model Rule of Professional
Conduct 3.6 on pretrial publicity.[1]The Court found that the rule’s
"substantial likelihood of material prejudice" standard
struck "a constitutionally permissible balance between the
First Amendment rights of attorneys and the state’s interest in
fair trials." 111 S Ct at 2745.

In contrast to Gentile, the formal complaint in this case
does not charge respondent with violation of MRPC 3.6 or any
other rule dealing with statements by an attorney which could
have an impact on the outcome of a trial or which could influence
a jury. Rather, the formal complaint alleges that respondent made
false statements with knowledge of their falsity or with reckless
disregard as to their truth or falsity.

We find nothing in Gentile which suggests that the
framework for deciding all cases involving attorney speech must
be found either in that decision or in cases applying the clear
and present danger doctrine. The decision of the Ninth Circuit inStanding Committee on Discipline v Yagman, 55 F3d 1430 (CA
9, 1995), might be said support such a view, if the following
paragraph were read literally and by itself:

We conclude, therefore, that lawyers’ statements unrelated to a
matter pending before the court may be sanctioned only if they
pose a clear and present danger to the administration of justice.
[Yagman, 55 F3d at 1443.]

This passage from Yagman cannot be read literally,
however. A rule prohibiting lawyer conduct that "interferes
with the administration of justice" was at issue in that
part of the opinion. Elsewhere in the same opinion, the court
applied New York Times and other First Amendment
authorities to a rule prohibiting attorneys from engaging in
conduct that "degrades or impugns the integrity of the
Court." A substantial body of caselaw has developed in which
the courts have applied (or purported to apply) New York Times
while construing MRPC 8.2(a) or similar rules in attorney
discipline matters. See section III, infra.

Perhaps this trend was started by the Supreme Court’s application
of New York Times in a criminal case involving a New
Orleans District Attorney who held a press conference at which he
accused the eight judges of a criminal court of laziness,
inefficiency, and worse. The District Attorney also accused the
judges of hampering his vice investigations by refusing to
disburse funds to his office. Among other things, he said:
"’This raises interesting questions about the racketeer
influences on our eight vacation-minded judges.’" Garrison
v Louisiana, 379 US 64, 66; 85 S Ct 209, 211; 13 L Ed 2d 125
(1964).

In Garrison, the Court applied the rule of New York
Times to a criminal libel prosecution, holding:

Truth may not be the subject of either civil or criminal
sanctions where discussion of public affairs is concerned. And
since "erroneous statement is inevitable in free debate, and
. . . it must be protected if the freedoms of expression are to
have the ‘breathing space’ that they ‘need . . . to survive’ . .
.," [New York Times,] 376 U.S. at 271-272, 84 S. Ct.
at 721, only those false statements made with the high degree of
awareness of their probable falsity demanded by New York Times
may be the subject of either civil or criminal sanctions. For
speech concerning public affairs is more than self-expression; it
is the essence of self-government. [Garrison, 379 US at
74-75; 85 S Ct at 216.]

The clear and present danger doctrine had been rejected by the
Louisiana Supreme Court as irrelevant to Garrison’s prosecution
under the criminal libel statute. Garrison, 379 US at 70;
85 S Ct at 213. Thus, the Court was confronted with a perfect
opportunity to refine or extend the clear and present danger
doctrine, and it applied New York Times instead.

None of this is to suggest that attorney speech is deserving of a
low level of constitutional protection. We simply reiterate our
choice of New York Times from among what has been called
"the befuddling array of theories, methods, formulas, tests,
doctrines and subject areas" which constitute modern free
speech jurisprudence. 1 Smolla, Smolla & Nimmer on Freedom of
Speech (3d ed), ‘2:2, p
2-3. The choice may not make much difference. As this treatise
has explained:

This ["actual malice"] standard, created in New York
Times, is widely understood as extremely protective of
freedom of speech, though it is not, technically, either the
"strict scrutiny" or "intent to incite imminent
lawless action" test familiar in other First Amendment
contexts. It is perfectly sensible, nonetheless, to classify the
Court’s New York Times libel standard as a variant of
"heightened scrutiny," supplying essentially the same
level of protection . . . but adapted to the context of libel
litigation. [Smolla & Nimmer, Freedom of Speech, supra,'2:12, p 2-9.]

Having reaffirmed our determination that New York Times
governs here, we now examine whether MRPC 8.2(a) fits within its
strictures.

2. Rule 8.2(a) Provides Only For Discipline Of Attorneys Who
Make False Statements With The High Degree Of Culpability Which
Renders The Statements Unprotected By The First Amendment.

Respondent argues that "MRPC 8.2(a) does not require
that a statement about a government official be false," and
that "in contrast to Sullivan, true statements may be
penalized under MRPC 8.2(a)." Respondent’s brief, pp 4, 6.
This construction has been rejected by commentators and by this
Board (see Fieger I, at p 8, quoted supra). We need
not further address this portion of the argument.

Additionally, respondent contends:

As regards Rule 8.2(a), the State cannot, consistent with the
First Amendment, have any valid interest in prohibiting a lawyer
from making a "knowingly false" statement concerning
the qualifications or integrity of a judge. [Respondent's brief,
p 12.]

Respondent further argues that "governmental sanctioning of
‘knowingly false’ statements could have a serious chilling effect
on the discussion of issues of public concern." Id.
The hearing panel’s citation to the concurring opinions in New
York Times may indicate that the panel agreed. However, the
majority opinion in New York Times clearly establishes
that false statements made with knowledge of their falsity, or
with reckless disregard for their truth or falsity, are not
constitutionally protected. 376 US at 279-280; 84 S Ct at 726.
This proposition is simply not subject to debate.[2]

The state of the applicable law is generally set forth in the
Court’s relatively recent, and thoroughly unified, decision in Hustler
Magazine v Falwell, 485 US 46, 50-52; 108 S Ct 876, 879-880;
99 L Ed 2d 41 (1988). After surveying and endorsing the Court’s
previous opinions, Justice Rehnquist summed up the reason for the
actual malice standard:

At the heart of the First Amendment is the recognition of the
fundamental importance of the free flow of ideas and opinions on
matters of public interest and concern. "[T]he freedom to
speak one’s mind is not only an aspect of individual liberty–and
thus a good unto itself– but also is essential to the common
quest for truth and the vitality of society as a whole." Bose
Corp. v. Consumers Union of United States, Inc., 466 U.S.
485, 503-504, 104 S.Ct. 1949, 1961, 80 L.Ed.2d 502 (1984). We
have therefore been particularly vigilant to ensure that
individual expressions of ideas remain free from governmentally
imposed sanctions. The First Amendment recognizes no such thing
as a "false" idea. Gertz v Robert Welch, Inc.,
418 U.S. 323, 339, 94 S. Ct. 2997, 3007, 41 L.Ed.2d. 789 (1974).

* * *

"Freedoms of expression require ‘breathing space.’" Philadelphia
Newspapers, Inc. v Hepps, 475 U.S. 767, 772, 106 S.Ct. 1558,
1561, 89 L.Ed.2d. 783 (1986) (quoting New York Times, supra,
376 U.S. at 272, 84 S.Ct. at 721). This breathing space is
provided by a constitutional rule that allows public figures to
recover for libel or defamation only when they can prove both
that the statement was false and that the statement was made with
the requisite level of culpability. [Hustler Magazine v
Falwell, 485 US 46, 50-52; 108 S Ct 876, 879-880; 99 L Ed 2d
41 (1988). Emphasis in original.]

Calculated falsehoods are not entitled to constitutional
protection because "the use of the known lie as a tool is at
once at odds with the premises of democratic government and with
the orderly manner in which economic, social, or political change
is to be effected." Garrison v Louisiana, 379 US at
75; 85 S Ct at 216.

The lines drawn by the Supreme Court are easily adapted to the
field of attorney discipline. Few duties imposed upon lawyers
serve to protect the public, the courts, and the profession more
than the basic obligation to tell the truth. Our Rules of
Professional Conduct proscribe knowingly false statements of
material fact in numerous contexts. See, e.g., MRPC 3.3, 4.1, and
8.1. See also MRPC 8.4(b). This Board has taken an attorney’s
deliberate misrepresentations most seriously:

"Truth is the cornerstone of the judicial system, and the
practice of law requires an allegiance and a fidelity to
truth." [Citation omitted.] In this case, Respondent has
been untruthful to her client and untruthful in her response to
the legitimate inquiry of our Supreme Court’s investigative arm.
Inasmuch as the license to practice law in Michigan is considered
to be a proclamation to the public and the legal profession that
the holder is fit to act in matters of trust and confidence, we
believe that revocation of that license is an appropriate
sanction when an attorney violates the fundamental obligation to
be truthful. This would seem to be especially true when a
deliberate, calculated intent to deceive is evidenced by the
preparation of a forged document. [Grievance Administrator v
Mary E. Gerisch, ADB 171-87; 197-87 (ADB 1988).]

Consistent with the Rules’ other proscriptions against lying,
MRPC 8.2(a) prohibits an attorney from propagating falsehoods as
to the qualifications or integrity of public legal officials when
the attorney knows of the statement’s falsity, or publishes the
false statement "with reckless disregard as to its truth or
falsity." In this context, "reckless disregard"
means that the attorney "must have made the false
publication with a ‘high degree of awareness of . . . probable
falsity,’ . . . , or must have ‘entertained serious doubts as to
the truth of his [or her] publication.’" Harte-Hanks
Communications, Inc v Connaughton, 491 US 657, 667; 109 S Ct
2678, 2686; 105 L Ed 2d 562 (1989).

Rule 8.2(a) does not violate the First Amendment.

B. Rule 8.2(a) Does Not Violate Equal Protection.

The panel concluded that Rule 8.2(a) violates the Equal
Protection Clauses of the Michigan and federal constitutions. We
conclude that it does not.

Equal protection of the law is guaranteed by the federal and
state constitutions. The Michigan and federal Equal Protection
Clauses offer similar protection. Doe v Dep’t of Social
Services, 439 Mich 650, 670-671; 487 NW2d 166 (1992). Unless
the discrimination impinges on the exercise of a fundamental
right or involves a suspect class, the inquiry under the Equal
Protection Clause is whether the classification is rationally
related to a legitimate governmental purpose. Id, at 662.
[Frame v Nehls, 452 Mich 171, 183; 550 NW2d 739 (1996).]

A class is suspect "only if it exhibits ‘the traditional
indicia of suspectness. . . .’" American States Ins Co v
Michigan Dep’t of Treasury, 220 Mich App 586, 593-594; 560
NW2d 644 (1996). Clearly, respondent is not a member of a suspect
class.

When a rule regulating the conduct of the bar "run[s] afoul
of the First Amendment in a significant or substantial manner,
then the courts are obliged to invoke strict constitutional
scrutiny." Berger v Supreme Court of Ohio, 598 F Supp
69, 75 (SD Ohio, 1984). But, MRPC 8.2 does not "run
afoul" of the First Amendment. It provides for professional
discipline only when an attorney makes statements not subject to
constitutional protection. Accordingly, strict scrutiny is not
triggered. Compare In Re Grand Jury Proceedings, 810 F2d
580, 587 (CA 6, 1987) (rejecting claim that statute interferes
with fundamental right in light of court’s reading of First
Amendment caselaw).

The question remaining is whether the classifications inherent in
the rule pass the rational basis test. Under this test, the
statute or rule in question is "given a strong presumption
of constitutionality." Rotunda & Nowak, supra, ‘18.3, p 21. See also Vargo
v Sauer, 215 Mich App 389, 394-395; 547 NW2d 40 (1996).
"This presumption requires the court to inquire whether
‘"any state of facts either known or which could reasonably
be assumed affords support."’" Brown v Manistee Co
Rd Comm’n, 452 Mich 354, 362; 550 NW2d 215 (1996). See also, In
Re Grand Jury, supra, at 587. "The constitution
‘"is offended only if the classification rests on grounds
wholly irrelevant to the achievement of the [legislative]
objective."’" Vargo, supra, citing McGowan
v Maryland, 366 US 420, 425-426 (1961).

We need not look far to find a legitimate governmental purpose
for a rule which prohibits intentional lies, or statements that
were made after the respondent "in fact entertained serious
doubts as to the truth of his [statement]." St Amant v
Thompson, 390 US 727, 731; 88 S Ct 1323; 20 L Ed 2d 262
(1968). The United States Supreme Court has recognized that a
state "has an interest in protecting the good repute of its
judges, like that of all other public officials." Landmark
Communications, Inc., v Virginia, 435 US 839, 841-842; 98 S
Ct 1535, 1543; 56 L Ed 2d (1978). However, "injury to
official reputation is an insufficient reason ‘for repressing
speech that would otherwise be free.’" Id
(emphasis added). Therefore, when a state attempts to curtail
First Amendment rights, strict scrutiny is required. But, where,
as here, no such curtailment is attempted, the interest
recognized by the Court as a valid one surely satisfies the
rational basis test.

The panel was troubled by the fact that Rule 8.2(a) "creates
an exalted class for judges, adjudicative officers, public legal
officers, and candidates for judicial or legal office"
(Panel Op, p 23). It is true that knowingly false or reckless
statements about most lawyers, and indeed all nonlawyers, are not
covered by MRPC 8.2(a). However, this does not amount to an equal
protection violation: a legislature or rulemaking body need not
attack all aspects of a problem at once. In Re Grand Jury
Proceedings, 810 F2d at 588, quoting Katzenbach v Morgan,
384 US 641 (1966).

Further, we are not certain that a false statement made with
actual malice about a fellow attorney not specified in Rule
8.2(a), or a nonlawyer, would necessarily escape discipline. See
MRPC 8.4(b) (proscribing conduct involving "dishonesty,
fraud, deceit, [or] misrepresentation" and reflecting
adversely on the lawyer’s "honesty, trustworthiness, or
fitness as a lawyer"). In determining the constitutionality
of the Michigan Rules of Professional Conduct, this Board must
"look to the provisions of the whole law." Frame v
Nehls, supra, at 183. And, when we do so, we see ample
condemnation throughout those rules for the type of conduct
sanctionable under MRPC 8.2(a) and New York Times.

There is a rational basis for MRPC 8.2(a). The Supreme Court of
Michigan, acting in its rulemaking capacity, may provide for the
discipline of lawyers who make false statements not protected by
the First Amendment about the integrity or qualifications of
judges, other adjudicators, public legal officers, or candidates
for judgeships.

III. The New York Times Standard As
Applied To Attorneys In Discipline Proceedings.

We have repeatedly said that New York Times applies to
this case. We must now explain the implications of this holding
in some detail. In the interest of adjudicative economy, we will
articulate our view of the applicable law to give guidance to the
panel and the parties who must try this case on remand.

A state may discipline an attorney for a statement concerning the
qualifications or integrity of the persons enumerated in MRPC
8.2(a), if the statement is (1) false, and (2) known by the
attorney to be false or made "with reckless disregard
as to its truth or falsity." MRPC 8.2(a); New York Times,supra. The concept of knowing misrepresentation is
familiar and the term is self-explanatory. However,
"reckless disregard" is a term of art that cannot be
loosely employed without seriously undermining the holding in New
York Times and subsequent cases.

A. "Reckless Disregard."

In New York Times v Sullivan and subsequent cases,
reckless-ness has a distinct meaning. "Reckless
disregard" under these First Amendment cases is not
based on what the reasonable speaker or publisher would have
done. It is a subjective test, and the speaker’s actual
state of mind is paramount:

"[R]eckless conduct is not measured by whether a reasonably
prudent man would have published or would have investigated
before publishing. There must be sufficient evidence to permit
the conclusion that the defendant in fact entertained serious
doubts as to the truth of his publication. Publishing with such
doubts shows reckless disregard for truth or falsity and
demonstrates actual malice." [2 Smolla & Nimmer on
Freedom of Speech, '23:3,
p 23-12, quoting St Amant v Thompson, 390 US 727, 731; 88
S Ct 1323; 20 L Ed 2d 262 (1968).]

The Court has recognized that the standard is a high one:

But, New York Times and succeeding cases have emphasized
that the stake of the people in public business and the conduct
of public officials is so great that neither the defense of truth
nor the standard of ordinary care would protect against
self-censorship and thus adequately implement First Amendment
policies. Neither lies nor false communications serve the ends of
the First Amendment, and no one suggests their desirability or
further proliferation. But to insure the ascertainment and
publication of the truth about public affairs, it is essential
that the First Amendment protect some erroneous publications as
well as true ones. [St Amant, 390 US at 732.]

Although the actual malice standard is a subjective one, a case
may not be defeated by mere "[p]rofessions of good
faith." Id. Courts may infer actual malice from
objective facts. Smolla, Law of Defamation, ‘3.14, pp 3-38 — 3-42.
"Failure to investigate does not itself establish"
reckless disregard, St Amant, 390 US at 733. However, if
it is coupled with other evidence which establishes — to the
requisite constitutional standard of proof — subjective
awareness of the probable falsity of the statement, then a
finding of "reckless disregard" is permitted.

B. The Clear And Convincing Standard Of Proof Is
Constitutionally Mandated.

The burden of proving ‘actual malice’ requires the plaintiff
to demonstrate with clear and convincing evidence that the
defendant realized that his statement was false or that he
subjectively entertained serious doubt as to the truth of his
statement. [Bose v Consumers Union of US, Inc, 466 US 485,
511 n 30; 104 S Ct 1949, 1965 n 30; 80 L Ed 2d 502 (1984).]

In addition to the right to be wrong in making certain
factual assertions, the First Amendment gives persons the right
to express their opinions, particularly as to matters of
public concern. Although the Supreme Court has rejected a
mechanistic and "artificial dichotomy between ‘opinion’ and
fact," every formulation of the New York Times
standard, contains — as a matter of logic — the requirement
that a statement may be sanctioned only if it is "provable
as false." Milkovich v Lorain Journal Co, 497 US 1,
19; 110 S Ct 2695, 2706; 111 L Ed 2d 1 (1990). See also Hustler
v Falwell, 485 US at 56; 108 S Ct at 882 (First Amendment
requires "that the publication contain a false statement of
fact which was made with ‘actual malice’").

Because a professed opinion can imply an assertion of fact, the
Court held in Milkovich that no blanket privilege exists
for "anything that might be labeled "’opinion,’"
110 S Ct at 2705, and reversed the state court’s grant of summary
judgment for defendants. However, the Court first satisfied
itself that the statements could reasonably be interpreted as
implying an assertion of fact, and that the "the
connotation . . . [was] sufficiently factual to be susceptible of
being proved true or false." Milkovich, 110 S Ct at
2707. It has been said that "by steadfastly adhering to the
requirement that actionable speech be factual speech, the Court
did in fact create constitutional immunity for genuine
opinion." Smolla, Law of Defamation, ‘23.11, pp 23-40.

At oral argument the Administrator suggested that Milkovich‘s
protection for opinions, or nonfactual statements, may not be
applicable because attorneys are involved here. We do not agree. Milkovich
is only one of many cases which afford protection for expressions
of opinion. Indeed, the "breathing space" afforded most
false statements of fact is afforded in the service of the
"’prized American privilege to speak one’s mind.’" New
York Times, 376 US at 269, quoting Bridges, supra.
This is the essence of the First Amendment, and of a
self-governing people. We reject the notion that an attorney –
or that anyone — may be sanctioned for having incorrect
opinions. "The First Amendment recognizes no such thing as a
‘false’ idea." Falwell, 108 S Ct at 879 (citation
omitted).

D. Sawyer And Gentile
Do Not Support Generally Weaker First Amendment Rights For
Attorneys.

Counsel for the Administrator made a general assertion that
an attorney’s speech may be subject to greater restriction than
that of other members of the public, and we deem it essential to
address this issue. We find that the two cases cited in support
of this view of the law do not compel this broad conclusion.

The first case relied upon by the Administrator, In Re Sawyer,
360 US 622; 79 S Ct 1376; 3 L Ed 2d 1473 (1959), does not stand
for the proposition that attorneys presumptively have fewer or
weaker First Amendment rights than nonattorneys. In Sawyer
a four-justice plurality held that an attorney’s remarks such as,
"There’s no such thing as a fair trial in a Smith Act case .
. . All rules of evidence have to be scrapped or the Government
can’t make a case," did not violate an ethics rule against
impugning the integrity of the judge before whom she was trying
such a case — even though her remarks contained particular
references to that case.

Justice Stewart concurred in this result, emphasizing that the
case did not involve prejudice to the administration of justice
by interfering with a fair trial. Justice Frankfurter and three
other dissenters thought the plurality opinion contained
"the strong intimation that if the findings are supportable,
a suspension based on them would be unconstitutional." 260
US at 665; 79 S Ct at 1397. The dissenters would not have found
the remarks constitutionally protected.

Some count Justice Stewart and the dissenters as five in favor of
less free speech for lawyers, generally. It is true that Justice
Stewart took pains to state that "[o]bedience to ethical
precepts may require abstention from what in other circumstances
might be constitutionally protected speech." 360 US at
646-647; 79 S Ct at 1388. But Justice Stewart referred to ABA
Canon 20 which "[g]enerally . . . condemned" publicity
prior to or during trial. Nothing in his concurrence necessarily
suggests that he would endorse broad restrictions on attorney
speech outside that context.

Moreover, the dissenters were also focused on the pendency of the
trial. Outside that context, the more general principles
articulated by Justice Frankfurter apply:

Certainly courts are not, and cannot be, immune from criticism,
and lawyers of course, may indulge in criticism. Indeed they are
under a special responsibility to exercise fearlessness in doing
so. 360 US at 669; 79 S Ct at 1399.

The second case relied upon by the Administrator, Gentile,supra, also involved a pending or impending trial. Relying
in part on Sawyer, the Court upheld a version of the
current rule on publicity adopted by many states (Model Rule of
Professional Conduct 3.6) because "it imposes only narrow
and necessary limitations on lawyers’ speech." 111 S Ct at
2745. The rule applies only to speech substantially likely to
materially prejudice a particular proceeding, is neutral as to
points of view, and "merely postpones the attorney’s
comments until after the trial." Id.

The Gentile majority noted that attorneys are officers of
the court, and are subject to regulation by courts which may
result in a different level of First Amendment protection.
However, the Court referred only to two types of cases: (1) those
involving an attorney’s representation of a client in a pending
matter; and (2) attorney solicitation and advertisement cases.
111 S Ct 2744. We cannot draw sweeping conclusions from the
reference to lawyer solicitation and advertising cases. The
scrutiny applied in such cases is at "a level commensurate
with the ‘subordinate position’ of commercial speech in the scale
of First Amendment values." Florida Bar v Went For It,
Inc, 515 US ___; 115 S Ct 2371, 2381; 132 L Ed 2d 541 (1995).
Speech relating to matters of public concern rests on "the
highest rung of the hierarchy of First Amendment values and [is]
entitled to special protection." Connick v Myers, 461
US 138, 145; 103 S Ct 1684, 1689; 75 L Ed 2d 708 (1983).

Given the extremely narrow restrictions upheld in Gentile
to vindicate the critical right to a fair trial, the decision
does not support an alteration of fundamental First Amendment
doctrine.

E. The "Objective New York Times
Reckless Disregard Standard."

Some courts have used an objective standard when assessing
whether an attorney made false statements with reckless disregard
as to their truth for purposes of MRPC 8.2(a). We believe that
such a test violates the First Amendment and the intent of
Michigan Rule of Professional Conduct 8.2.

In New York Times, the Court repudiated civil and criminal
laws aimed at protecting the government and its officials from
criticism — even though it may be false and bring its subjects
into "’contempt and disrepute.’" 376 US at 274 (quoting
the Sedition Act of 1798). New York Times‘ actual malice
standard has been hailed as extremely protective of speech. But
it did not go far enough for the three concurring justices who
opined that citizens possessed an absolute, unconditional right
to criticize government agencies and officials without fear of
government sanction. Thus, the debate was not over whether
falsity was sufficient to strip from speech its First Amendment
protections. All agreed that it was not. The issue was whether
the actual malice standard would adequately safeguard First
Amendment rights.

Soon after New York Times, the Supreme Court distinguished
an objective test from the "reckless disregard"
standard. In Garrison, supra, the Court expressly
disapproved of the Louisiana trial court’s
"reasonable-belief standard" ("a reasonable belief
is one which ‘an ordinarily prudent man might be able to assign a
just and fair reason for’"). The Court explained that under
such a standard immunity for false statements

disappears on proof that the exercise of ordinary care would have
revealed that the statement was false. The test which we laid
down in New York Times is not keyed to ordinary care;
defeasance of the privilege is conditioned, not on mere
negligence, but on reckless disregard for the truth. [Garrison
v Louisiana, 379 US at 79; 85 S Ct at 218.]

A more recent statement of the actual malice standard expressly
spells out its subjective nature and the showing that must be
made:

The burden of proving "actual malice" requires the
plaintiff to demonstrate with clear and convincing evidence that
the defendant realized that his statement was false or that he
subjectively entertained serious doubt as to the truth of his
statement. [Bose Corp v Consumers Union, 466 US 485,
511 n 30; 104 S Ct 1949, 1965 n 30; 80 L Ed 2d 502 (1984).
Emphasis added.]

The subjective standard is constitutionally compelled because
"the stake of the people in public business and the conduct
of public officials is so great that neither the defense of truth
nor the standard of ordinary care would protect against
self-censorship and thus adequately implement First Amendment
policies." St Amant, 390 US at 732.

Years after the majority opinion in New York Times, few
would argue that deliberate lies are worthy of protection. The
lasting legacy of New York Times is its reaffirmation of
the long-standing right to voice opinions, and, perhaps more
important, its clear recognition of the right to err in making
factual statements so that self-censorship does not impoverish
our public discourse or permit civic wrongs and potential abuses
to go unexamined for fear of government sanction. Thus, the bulk
of New York Times‘ protection is afforded through its
stringent definition of "reckless disregard," i.e., by
requiring subjective awareness of the probable falsity of the
statement.

We cannot brush off First Amendment concerns simply by stating
that defamation is different than attorney discipline. "The
test is not the form in which the state power has been
applied." New York Times, 376 US at 265. The Court
has given the applicable principle a broad formulation:
"even where the utterance is false, the great principles of
the Constitution which secure freedom of expression in this area preclude
attaching adverse consequences to any except for the knowing
or reckless falsehood." Garrison, 379 US at 73
(emphasis added). Nor can we employ terms like "officer of
the court" as a substitute for analysis. Cf. New York
Times, 376 US at 269 ("’mere labels’ of state law"
such as "libel" do not afford "talismanic immunity
from constitutional limitations").

Where unbridled speech amounts to misconduct that threatens a
significant state interest, the state may restrict a lawyer’s
exercise of personal rights guaranteed by the Constitution. See NAACP
v Button, 371 U.S. 415, 438, 83 S.Ct. 328, 340, 9 L.Ed.2d 405
(1963). Restrictions on free speech, however, will survive
judicial scrutiny only if the limitation furthers an important or
substantial governmental interest and is no greater than
necessary or essential to the protection of the particular
governmental interest involved. Sable Communications of
California, Inc v FCC, 492 U.S. 115, 109 S.Ct. 2829, 106
L.Ed.2d 93 (1989). [In Re Westfall, 808 SW2d at 835-836.]

The court then concluded that "[t]he objective standard
survives first amendment scrutiny in light of the compelling
state interests served." Westfall, 808 SW2d at 837.
The interests identified were "protecting the public, the
administration of justice, and the profession." Id.
Recklessly false statements proscribed by Missouri’s Rule 8.2(a)
"can undermine public confidence in the administration and
integrity of the judiciary, thus in the fair and impartial
administration of justice," the court stated.

We do not underestimate the importance of maintaining confidence
in the judiciary. Its inability to command troops or fiscal
resources led to an early and enduring concern about how best to
maintain the independence of this branch of government. The
argument against judge-bashing has been forcefully stated in the
past:

"Whenever we subject the established courts of the land to
the degradation of private prosecution, we subdue their
independence and destroy their authority. Instead of being
venerable before the public, they become contemptible, and we
thereby embolden the licentious to trample upon everything sacred
in society, and to overturn those institutions which have
hitherto been deemed the best guardians of civil liberty." [In
Re Gilliland, 284 Mich 604, 611; 280 NW2d 63 (1938)
(citations omitted).]

The media reportage in just the last few years contains too many
disturbing examples of short-sighted attacks on members of the
judiciary at the state and federal levels. Many mourn the passing
of civility as the ranks of attorneys expand, and concern over
cynicism in the populace generally seems widespread. No one wants
to see more unfounded attacks on public officials, legal or
otherwise. But, it is probably a mistake to assume that this time
is profoundly different from others, or, if it is, that
restricting speech will improve things.

The notion that courts must have special protection has been
dispelled by the Supreme Court itself. In New York Times,
the Court demonstrated its awareness of "[t]he climate in
which public officials operate": "’Charges of gross
incompetence, disregard of the public interest, communist
sympathies, and the like usually have filled the air; and hints
of bribery, embezzlement, and other criminal conduct are not
infrequent.’" 376 US at 273 n 14. In this context, the Court
cited judicial criticism cases for the proposition that injury to
official reputation does justify repression of speech.

In Landmark Communications, Inc v Virginia, supra,
the Court, in an opinion by Chief Justice Burger, recognized that
a state may have a legitimate interest in protecting the
reputation of its judges and the bench in general, but held that
neither interest would justify criminal sanctions for divulging
"confidential" information about judicial discipline
proceedings:

"The assumption that respect for the judiciary can be won by
shielding judges from published criticism wrongly appraises the
character of American public opinion. . . . [A]n enforced
silence, however limited, solely in the name of preserving the
dignity of the bench, would probably engender resentment,
suspicion, and contempt much more than it would enhance
respect."

Mr. Justice Frankfurter, in his dissent in Bridges, agreed
that speech cannot be punished when the purpose is simply
"to protect the court as a mystical entity or the judge as
individual or as anointed priests set apart from the community
and spared the criticism to which in a democracy other public
servants are exposed." Id., at 291-292, 62 S Ct at
208. [Landmark, 435 US at 842.]

In addition to rejecting the notion that courts must be shielded
from criticism, the Court, in Bridges and Landmark,
has explained why this is so: such repression does not achieve
the ends articulated to justify it. Simply put, it will do more
harm than good. In making this point another way, one commentator
has said:

the special qualifications of attorneys to make perceptive
criticisms may tend to validate even their unjust criticism of
judges in the public eye, but these qualifications also provide
the best resource of just criticism. It is reasonable to
assume that the public is as likely to view a self-criticizing
legal system as a self-improving one, as it is to view that type
of system as untrustworthy. [J. Dodd, The First Amendment and
Attorney Discipline for Criticism of the Judiciary: Let the
Lawyer Beware, 15 N Ky L Rev 129, 144 (1988); emphasis added.]

See also Gentile, supra, 111 S Ct at 2735 (Opinion
of Justice Kennedy).[3]

An objective recklessness test would fail to advance its asserted
aims. And, even if suppression did enhance respect to some minor
degree, it would not be worth the cost.

Unlike the limitation on speech upheld in Gentile, the
objective reckless disregard test does not survive the heightened
scrutiny mandated by the First Amendment. Affording attorneys the
rights of other citizens to free speech under New York Times
does not in fact "threaten . . . a significant state
interest," Westfall, 808 SW2d at 835. Also, the
objective test is not narrowly tailored. We must consider the
"lawyer’s First Amendment interest in the kind of speech . .
. at issue." Gentile, 111 S Ct at 2744. As we have
noted, speech concerning public officials and affairs deserves
the greatest protection. In Gentile, the attorney’s
freedom to speak was postponed. Under an objective test, an
attorney would be permanently muzzled.

The Michigan Supreme Court, citing New York Times, has
rejected the argument that a statute was necessary to
"preserve public confidence in the integrity of the
government from being unnecessarily or prematurely
diminished." In Re Advisory Opinion On 1975 PA 227,
396 Mich 465, 482; 242 NW2d 3 (1976). The Court stated:

These are no doubt important considerations but they do not
amount to "compelling state interests" sufficient to
justify the substantial restrictions imposed by ‘ 40 on the guarantees of
free speech and press.

Possible injury to the reputation of a public official does not
afford a basis for repressing speech. New York Times v
Sullivan, . . . [In Re Advisory Opinion, supra.]

The First Amendment protects even some "irresponsible"
(i.e., unreasonable) statements that deserve the condemnation of
the bar and the public. When an attorney, or anyone, levels
charges which turn out to be false, and the charges are based on
incomplete evidence or assumptions, then that speaker should be
criticized for his or her sloppy thinking and rash speech. If the
speaker is an attorney, his or her credibility and reputation
should suffer.

Because of the importance of open discourse, particularly on
matters involving government, the penalty for most of these false
statements should be some degree of lowered esteem, imposed after
a trial in the court of public opinion. The circumstances will
dictate whether people will condemn or forgive the speaker. Here,
as elsewhere, the First Amendment counsels that the best remedy
is counterspeech not censorship. Our Rules of Professional
Conduct adopt this approach as well.[4]

Only when the false statements are made knowingly or with
"reckless disregard" as defined in New York Times
and its progeny may the state sanction the speaker. The Supreme
Court has repeatedly so concluded, emphasizing the right and
duty of citizens to speak out about government, and the right
of fellow citizens hear such speech.

Attorneys may at times be the only ones in possession of vital
information pertaining to courts, prosecutors, and other legal
officials with extensive powers. It would be unwise to abridge
attorney speech about that which they collectively know best. We
believe that it would also be unconstitutional. An objective
reckless disregard standard would allow the state to second-guess
the reasonableness of a factual statement in direct contravention
of New York Times, thereby chilling attorney speech
impermissibly.

Having set forth our general view of the applicable law, we shall
now consider whether the motion for summary disposition under MCR
2.116(C)(8) was appropriately granted by the panel.

IV. Does The Formal Complaint State A Claim On Which Relief
Can Be Granted?

In reviewing the panel’s decision to grant summary
disposition, we are guided by the following standard:

A motion for summary disposition under MCR 2.116(C)(8) may be
granted if the claim is so clearly unenforceable as a matter of
law that no factual development could possibly justify recovery. Simko
v Blake, 448 Mich 648; 532 NW2d 842 (1995). All factual
allegations contained in the complaint must be accepted as true,
together with any legitimate inferences which may be drawn
therefrom. Boumelhelm v Bic Corp, 211 Mich App 175, 178;
535 NW2d 574 (1995). [Grievance Administrator v Rostash,
ADB No 93-117-GA (ADB 1996).]

The Grievance Administrator concedes that the New York Times
standard must be met in order for respondent to be disciplined
under any of the rules set forth in the formal complaint.[5]See, e.g., Administrator’s
brief in support of petition for review, pp 2, 6, and 8. However,
tribunals should not reach constitutional questions when a case
may be fairly disposed of on other grounds. In Re Snyder,
472 US 634, 642; 105 S Ct 2874, 2880; 86 L Ed 2d 504 (1985).
Thus, we also consider whether any of the panel’s rulings on the
MCR 2.116(C)(8) motion may be affirmed on nonconstitutional
grounds.

A. Count I.

The gist of Count I is that respondent — while representing
the family of an inmate at the Ionia correctional facility who
was found dead, hanging from a bedsheet in his cell — accused a
county prosecutor of "covering up a murder." The
complaint alleges that following an autopsy and investigation,
several agencies, including the prosecutor’s office, concluded
that the death was a suicide. According to the complaint,
respondent made several statements, including, "The
prosecutor has done nothing. He’s covering up a murder."
(Amended Formal Complaint, &
10(b).)

The claim is not so clearly unenforceable that, regardless of the
facts adduced at the hearing in support of his allegation, the
Administrator could not prove a violation of MRPC 8.2(a).
However, we affirm the panel’s disposition of the MCR 9.104(1)
and MRPC 8.4(c) claims.

1. Prejudice To The Administration of Justice.

Count I alleges that in making the statements regarding the
prosecutor, respondent violated MCR 9.104(1) (forbidding
"conduct prejudicial to the proper administration of
justice"), and MRPC 8.4(c) ("It is professional
misconduct for a lawyer to . . . engage in conduct that is
prejudicial to the administration of justice").

Some courts have limited the application of such rules to
interference with civil or criminal judicial processes. See,
e.g., In Re Haws, 801 P2d 818, 822 (Or, 1990) (substantial
or repeated harm to "judicial proceedings and matters
directly related thereto"), Howell v Texas, 559 SW2d
432, 436 (Tex Civ App, 1977) ("administration of justice
consists in the trial of cases in the court, and their judicial
determination and disposition by orderly procedure, under rules
of law, and putting of the judgment into effect"), In Re
Curran, 115 Wash 2d 747; 801 P2d 962 (1990) ("violations
of practice norms and physical interference with the
administration of justice").

We have previously noted the general nature of the rule, and have
somewhat narrowed its application:

While the rule is designedly a "catchall" provision,
this breadth does not allow for the discipline of all types of
attorney conduct viewed with suspicion and disfavor. Rather, the
better view limits the sweep of this rule to "violations of
well understood norms and conventions of practice." 2 Hazard
& Hodes, The Law of Lawyering, ‘ 8.4:501, p 957. [Grievance
Administrator v Rostash, ADB No 93-117-GA (ADB 1996).]

We need not delineate the outer confines of the rule’s reach in
this opinion. Count I alleges that respondent falsely accused a
prosecutor of misconduct with knowledge of the falsity of the
statement or with reckless disregard as to its truth or falsity.
However, the complaint contains no other allegations of fact to
support the claim that respondent’s conduct was prejudicial to
the administration of justice.

Lawyers who make statements proscribed by MRPC 8.2(a) are subject
to discipline in order to limit the unwarranted diminution of
confidence in the judiciary and the legal system in general. But,
we are unwilling to make all of the presumptions necessary to
conclude that every knowing or recklessly published falsehood
regarding a legal official’s integrity or qualifications
prejudices the administration of justice. Even if they result in
a temporary reduction in public confidence, such statements do
not inevitably translate into tangible harm to the legal system
or the rule of law.

We conclude that Count I fails to allege sufficient facts to set
forth a claim for discipline under MRPC 8.4(c) and MCR 9.104(1).

2. An Evidentiary Hearing Is Needed To Determine, Among Other
Things, Whether The Statements Can Reasonably Be Interpreted As
Stating Actual Facts About The Prosecutor.

The statements set forth in Count I could be construed in
more than one way. For example, "He’s done nothing"
could be read literally, or it could be hyperbole. Similarly,
"He’s covering up a murder" could be an allegation of
criminal conduct and misfeasance in office, of affirmatively
concealing the truth regarding the cause of death. Or, depending
on the context, it could be extremely volatile rhetoric intended
to convey that the investigation by the prosecutor’s office was
poorly handled, failed to account for all of the evidence, or
otherwise reached the wrong conclusion. Cf. Watts v United
States, 394 US 705; 89 S Ct 1399; 22 L Ed 2d 664 (1969)
(alleged threat against the President).

Because we have an interest in "fostering energetic,
tumultuous public debate to ensure continued scrutiny of police,
prosecutors, and the courts through cherished constitutional
rights guaranteeing freedom of speech and the press," Rouch
v Enquirer & News, 440 Mich 238, 242; 487 NW2d 205
(1992), cert den 507 US 967 (1993), we must be careful not to
stifle colorful or bombastic expressions, even though many in the
community would find the choice of words irresponsible, unfair or
demagogic. However, summary disposition under MCR 2.116(C)(8) is
not appropriate.

The Watts decision illustrates several points pertinent to
our analysis. Watts attended a public rally in Washington, D.C.,
and stated in a small group discussion that he would not report
for his upcoming draft physical, and that: "If they ever
make me carry a rifle the first man I want to get in my sights is
L.B.J. They are not going to make me kill my black
brothers." 394 US at 706; 89 S Ct at 1401. He was convicted
of violating a statute prohibiting threats against the President.
The Supreme Court reversed the conviction in a per curiam
opinion. The Court held that the statute was facially
constitutional; the country’s interest in protecting the
President is valid. However, the statute, which regulates pure
speech, must be interpreted in light of the First Amendment.
Accordingly, true threats must be distinguished from "the
kind of political hyperbole indulged in by [Watts]." 394 US
at 708; 89 S Ct at 1401.

For we must interpret the language Congress chose "against
the background of a profound national commitment to the principle
that debate on public issues should be uninhibited, robust, and
wide-open, and that it may well include vehement, caustic, and
sometimes unpleasantly sharp attacks on government and public
officials." New York Times, [supra]. The
language of the political arena . . . is often vituperative,
abusive, and inexact. [Watts, 394 US at 708; 89 S Ct at
1401-1402.]

The Court continued by referring to the context of the statement
(Watts and his listeners laughed), and its conditional nature,
and concluded that it was a "’crude offensive method of
stating political opposition to the President.’" 394 US at
708; 89 S Ct at 1402.

We do not provide an exhaustive list of the issues that might
present themselves on remand.[6]For example, the proofs may
raise the question whether respondent’s statements are
"based on assumed or expressly stated facts" or are
"based on implied undisclosed facts." Yagman, 55
F3d at 1439.

Remand and a hearing are necessary, in part, so that the panel
may ascertain the context in which respondent made the alleged
remarks.[7]
After hearing the evidence the panel will be able to make its
findings of fact and conclusions of law on all issues presented.

3. Reckless Disregard.

The Grievance Administrator has alleged that respondent made
the statements either with knowledge of their falsity or with
reckless disregard as to their truth or falsity. Count I of the
formal complaint states a claim under MRPC 8.2(a) and is not
subject to dismissal on First Amendment grounds under MCR
2.116(C)(8). On remand, the panel shall hear evidence on the
elements of the claim, such as whether the statements amounted to
factual assertions, and whether respondent knowingly lied or made
the statements with reckless disregard for the truth.

B. Count II.

In Count II, the formal complaint alleges that respondent
accused a circuit judge of "conspir[ing] with [opposing
counsel] to dismiss [a pending case in which respondent
represented the plaintiff] in exchange for [opposing counsel]
providing employment for [the judge's] daughter" (Formal
Complaint, &19(a).
The complaint further alleges that respondent said, "’This
is an act of monumental judicial corruption that has got to be
investigated,’" and that the judge’s "’acts indicate as
corrupt a judicial temperament as one could possibly
imagine’" (Id., &19(b)
& (c)).

The complaint also alleges that the statements were known by
respondent to be false, or were made by him with reckless
disregard as to their truth or falsity, and that they concerned
the qualifications or integrity of the circuit judge.